The adoption of children against the wishes of their mothers and the failure to take family reunification measures violated their family life.

JUDGMENT

A.S. v. Norway (no.  60371/15)

Abdi Ibrahim v. Norway (no. 15379/16)

SUMMARY

The cases concerned decisions by the Norwegian authorities and courts to take the applicants’
children into care at a young age and then in the first case to refuse to terminate long-term foster
care for the child and in the second to allow adoption by the foster family, both against the
applicants’ wishes. The applicants were refused any contact rights with their children.

The Court referred to the recent case of Strand Lobben v. Norway, noting the “strict scrutiny” it had
to apply when limitations had been placed on parental access after a child had been taken into care.
The Court found that the decision-making process on the children in these two cases had failed to
give due account to the applicants’ views and interests, leading to violations of their human rights.

PROVISION 

Article 8

PRINCIPAL FACTS 

The two applicants in these cases were women whose children were taken into care and placed with
a foster family. In the first case the authorities refused to terminate foster care for the child and in
the second the child was adopted by the foster carers, in both instances against the applicants’
wishes.

The applicant in the first case was A.S., a Polish national who was born in 1968, while the applicant
in the second case was Mariya Abdi Ibrahim, a Somali national born in 1993.

The first applicant’s son, born in 2009, was first placed in emergency care and then in foster care in
2012. She applied in 2014 to terminate the placement, but the City Court in March 2015 rejected her
request, denied her any contact rights and withheld the foster family’s address.

The City Court found, among other things, that the son had had developmental issues which had
improved after his foster placement. The applicant had acknowledged that the 2012 care order had
been justified but had argued that her parenting skills had improved after special courses.

The City Court questioned whether she had acknowledged her neglect of the child and could not see
that the measures she had taken had had much effect on her parenting skills. It further observed
that contact sessions with her son had shown that she could not see his perspectives and needs.
The City Court also found that he had become so attached to his foster family that he would be
harmed if he was moved. The applicant was denied leave to appeal by both the High Court and the
Supreme Court, whose decision was delivered in July 2015.

The second applicant’s child, a son born in 2009 in Kenya before she moved to Norway, where she
was granted refugee status, was taken into emergency foster care in December 2010. He was
subsequently placed with a Christian family, while the applicant had argued he should go to either
her cousins or to a Somali or Muslim family.

The authorities applied to allow the foster family to adopt the child, which would lead to the
applicant having no contact, and for the applicant’s parental rights to be removed. She appealed:
she did not ask for the child’s return as he had spent a long time with foster parents to whom he had
become attached, but she sought contact so he could maintain his cultural and religious roots.

The High Court ruled by a majority in May 2015 to dismiss the applicant’s appeal and allow the
adoption. Among other things, it examined issues arising from his being adopted by a Christian
family, such as ethnicity, culture and religion. She was refused leave to appeal to the Supreme Court
in September 2015.

THE DECISION OF THE COURT…

Considerations common to both cases

The Court reiterated the principles related to child welfare as set out in Strand Lobben. Where public
care had been imposed, the authorities had a duty to take measures to facilitate family reunification
as soon as reasonably feasible.

Where there was a conflict of interests between a child and the parents, the authorities had to strike
a fair balance, although a child’s best interests could override those of a parent. Family ties could
only be severed in very exceptional circumstances.

States had wide discretion (“a wide margin of appreciation”) when deciding on taking a child into
care, but the Court had to apply a “stricter scrutiny” of further limitations, such as restricting
parental access, as they could lead to a parent and young child’s family relations being curtailed.

Case of A.S. v. Norway

The Court noted that the March 2015 City Court judgment refusing the applicant’s request to end
her son’s foster placement had stated that such care was expected to be “long term”. Furthermore,
the proceedings before that point had also carried the assumption of an extended placement. The
situation had thus been cemented from the outset, in particular through a strict regime of visits.

The Court found no grounds to second-guess the City Court’s assessment of aspects of the case.
However, it observed that a finding that the applicant had shortcomings in her basic and intuitive
parental skills was particularly challenging as it had to rest on vague and subjective criteria.

The Court also emphasised that the City Court’s decision, which had effectively represented the
end-point for the applicant’s family life with her son, had to be based on a sufficiently broad and
updated factual basis, particularly where she had argued that her parenting skills had improved.
The City Court had assessed a number of relevant issues, but it was striking that it had nevertheless
rejected all the evidence in the applicant’s favour with limited or no reasoning. Furthermore, the
March 2015 judgment had been based on old reports: her parenting skills had last been assessed
independently in 2012, while the foster parents had been the ones who had reported on the child’s
development from 2013 to 2015, without further independent corroboration.

The decision to refuse to terminate foster care had been based to a large extent on the child’s
negative reactions to contact sessions with the applicant. However, those reactions had also been
reported on by the foster parents as they had been with him between the sessions. Psychologists
had disagreed as to why the child had reacted negatively to his mother. In short, the City Court had
provided limited grounds for its finding about the nature and cause of the child’s negative reactions.
The Court, emphasising the gravity of the interference in question and the seriousness of the
interests at stake, did not consider that the decision-making process leading to the orders against
the applicant had been conducted to ensure that all her views and interests had been duly taken
into account. It concluded that there had been a violation of Article 8.

Case of Abdi Ibrahim v. Norway

The Court decided to consider the applicant’s complaints under Article 8 alone.
It noted that Ms Abdi Ibrahim had not sought her child’s return but had asked the courts to refuse
his adoption and the removal of her parental rights, maintaining her contact rights. Nevertheless,
the authorities had still been under an obligation to facilitate their family life, at the minimum by
maintaining a relationship via regular contact in a way that was in the child’s best interests.

The Court noted that from the outset her contact with her child had been severely limited by the
authorities, thus already leading to a danger of their family ties being completely broken.

It was thus difficult to see how the authorities had fulfilled their duty to facilitate family
reunification, especially when an initial care order was to be seen as a temporary measure and that
adoption, the most far-reaching outcome, was only to be foreseen after careful consideration by the
courts had led to a conclusion that reunification was not possible.

Furthermore, domestic authorities could not use a breakdown in family relations as a reason to
authorise adoption when they had themselves created that situation by failing in their obligation to
take measures to reunite a family.

A key issue in the High Court judgment had been that the child had reacted negatively to the few
contact sessions that had taken place with the applicant.

However, it was not possible to draw clear conclusions about future contact from so few meetings.
The High Court had also provided limited grounds for its findings on the nature and cause of the
child’s reactions during the meetings, which had nevertheless been crucial for its finding that
adoption should go ahead. There had been little to suggest that contact would always be negative so
as to conclude that breaking off all contact with the applicant would be in the child’s best interests.

Lastly, the High Court had focussed on the potential harm from the child being removed from his
foster parents, rather than on the grounds for terminating all contact with his mother. The High
Court had thus apparently given more importance to the foster parents’ opposition to an “open
adoption”, which would have allowed for contact, than to Ms Abdi Ibrahim’s interest in continuing
to have a family life with her child.

The Court concluded that the authorities had not given enough weight to the applicant and her child
enjoying a family life, a finding it based on the case as a whole and on reasons which had spoken for
maintaining contact, notably relating to their cultural and religious background.

The Court, emphasising the gravity of the interference and the seriousness of the interests at stake,
did not consider that the decision-making process leading to the withdrawal of the applicant’s
parental responsibilities for her child and to his adoption had been conducted so as to ensure that all
the applicant’s views and interests had been duly taken into account.

There had therefore been a violation of Article 8.

Just satisfaction (Article 41)

The Court held that Norway was to pay the applicant in the first case 25,000 euros (EUR) in respect
of non-pecuniary damage. The applicant in the second case did not claim compensation for damage.